No. 20,524 | Minn. | Oct 19, 1917
After trial defendant moved for judgment notwithstanding the verdict. The motion was denied. From the judgment entered pursuant to the verdict defendant appeals. Since there was no motion for a new trial the errors assigned upon the excessive amount of recovery, the instructions of the court, and rulings at the trial cannot be considered. Northwestern M. & T. Co. v. Williams, 128 Minn. 514" date_filed="1915-03-05" court="Minn." case_name="Northwestern Marble & Tile Co. v. Williams">128 Minn. 514, 151 N. W. 419; Daily v. St. Anthony Falls Power Co. 129 Minn. 432" date_filed="1915-05-28" court="Minn." case_name="Daily v. St. Anthony Falls Water Power Co.">129 Minn. 432, 152 N. W. 840. “The above cases and the cases cited therein, also established the; rule that judgment notwithstanding the verdict will never be granted for error in either law or procedure committed at the trial.” Bosch v. Chicago, M. & St. P. Ry. Co. 131 Minn. 313" date_filed="1915-12-10" court="Minn." case_name="Bosch v. Chicago, Milwaukee & St. Paul Railway Co.">131 Minn. 313, 155 N. W. 202. Therefore the only question before us is “whether there is any competent evidence reasonably tending to sustain the verdict.” If the verdict be thus sustained the judgment must stand. Cruikshank v. St. Paul F. & M. Ins. Co. 75 Minn. 266, 77 N. W. 958, and cases cited in the second paragraph of section 393, Dunnell, 1916 Minn. Dig. Supp.
The action was for recovery of damages for injuries received when plaintiif’s foot was caught in an unblocked frog at' a railroad switch. That a jury may find actionable negligence in the failure to properly block a railroad frog • at a place where' men are required to work goes without saying. Nor can there be any question that plaintiff’s alleged contributory negligence was for the jury. The only debatable proposition in the case is whether the jury were justified in holding defendant responsible for the unblocked frog. Plaintiff’s evidence showed that defendant’s right of way is adjacent to certain grain elevators owned by plaintiff’s employer. That these elevators are served by defendant through three side tracks located upon land of the elevator company. That at times defendant stores its empties on these tracks. That defendant installed a cross-over track joining these side tracks, the unblocked frog which caused the injury being on the switch of this crossover track. That this cross-oyer track belongs to defendant, but under what arrangement it was located upon the elevator company’s land is not disclosed. The inference is that the mutual interest of both companies demanded its construction. We think defendant’s liability for the condition of the switch was for the jury.
Affirmed.